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tv   [untitled]  CSPAN  June 27, 2009 9:30am-10:00am EDT

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it is a little deceptive. i don't consider the reason i was -- whatever the reason, i don't consider one of the reasons i was appointed was because i was a federal judge. i was only that for a couple of years. david souter was a federal judge for about five minutes before he was elevated from the first circuit, so it's a little misleading. it's important to recognize that in terms of legal experience, we're pretty diverse bunch. i consider myself a practicing lawyer. that's a member of the bar. that's what i brought. we have a couple of justices who bring really careers primarily as academics. justice souter brought his experience in the state court system. justice thomas, the only one among us, i think, who ran an agency. justice briar, extensive experience on the hill. justice kennedy, again, is a practicing lawyer in sacremento. justice ginsburg, both as an
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academic, and as a practicing lawyer before the court in the area of equal protection. justice alito, the most experienced, i think, on the bench before coming to the court, and also experience as a federal prosecutor, so we have the same label of being federal jums but we're also a pretty diverse bunch. having said that, obviously some great justices in our history did not bring that experience, and were great judges and justices. i do think it's important when you talk about this to figure out exactly what it is you think is lacking on the court, and not just look at the labels. in the past, we've had a lot of politicians appointed to the court, and if they're willing to become judges and leave behind the politics, i think that's a great -- that can be a great source, but i guess after talking last night about chase, he was drawn from the political
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branches an remained with the federal court and the court suffered because of that. >> additional question? yes, sir. >> mr. chief justice, what are some of your favorite books, and what do you like to read in your spare time when there is any, in addition to your beefs? >> i do not like to read briefs in my spare time. i like detective novels, mystery novels, the sort of things you read on the beach. i like historical biographies. i hear there is a new biography of lincoln out, which i think would make good reading. a couple summers ago when i was new to the job, i thought i ought to learn a little bit about my predecessors, first learn who they are. for all the efforts of someone on the judiciary committee to probe my possible weaknesses,
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one of them had asked me the name of the prior 16 chief justices, that would have been devastating, because i'm not sure that i could have, but i like to read biographies. there weren't very good biographies of most of my predecessors but i tried to look through them. i would say the combination of detective novels, you know, and historical biographies. >> when we talk about people's favorite book, it's interesting to me, because nobody ever sells, well, i just love judicial biographies. there is an exception to that of oliver wendell holmes, but he had to be wounded three times in the civil war before people got interested in him, but i certainly want to thank you,
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chief justice. >> we have time for one more. someone has headed to the mic. if they have gone that far, i ought to answer the question. >> thank you, judge. the question i had is one the one that was mentioned in the introduction, and i wonder if you would elaborate on that. >> which was? >> the effort to obtain more consensus in the opinions issued by the court. >> sure. first of all, unanimousness, i am not a literalist there. 6-3 is close to unanimous on our court. i think it's been -- i think my views have been exaggerated a little bit. i'm not suggesting, of course, that justice is compromised. you can't do that. you can't say that something is in halfway in violation of the
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fourth amendment. it either is or isn't, but obviously i think the more we can speak with the broader degree offing a geem that what looks a lot more like law, you get 5-4 that says this is what some provision of law requires and you can see people being a little skeptical about that, it's better for the development of the law, and i do think it gives clearer guidance. at least this is what everybody thinks an chose to everybody thinks. the worst thing is you come up with a 2, 3, 1, 2, kind of thing and nobody knows what that means but i do think to the extent we can come together in broader agreement, that's better. it has consequences. you're more likely to get broad er agreements the narrower the decision is. as you try to spin it out more broadly and answer issues that aren't before the court, that's where people will spin off and say, i'm not onboard for that. the narrower the grounds of decision, the more likely you
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are to get broading a geem. i do think that's a good thing. >> thank you so much for the time you spent with us. >> i am delighted to be here. thank you all very much for the friendly welcome. >> well, it is just a pleasure to have you and jane with us. i understand the children came with you and they have had a great time, too. >> well, i issue a little warning. we're going to try a little archery in the morning, so -- broad leeway, a broad cushion would be recommended to everybody. >> we've got a great panel coming up. i'm going to ask moderator dick howard to begin to assemble those. don't go away. we have wonderful commentary yet ahead. i want to thank the chief justice once again for his role in making this such a splendid conference. let's giving him a standing ovation. [applause]
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>> thank you, i appreciate it. it was a lot of fun.
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>> please take a seat. we're about ready to begin the panel. we have this morning a wonderful panel under the leadership of professor a.u. dick howard, professor of law and public affairs at the university of virginia. professor howard has done this now for several years and we have come to admire the manner in which he prepares the panel,
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prepares the cases and presents this, each supreme court term. i understand that he's not going to cover monday's cases, although i'm not so sure. he may have some insight on, that but i will call on professor howard to come forward and ask him if he would present the panel his full resume is in your little blue book in the back, and as are the resumes of the other panel members. professor howard. [applause]
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>> good morning to all of you. some of you are veterans of previous sessions like this. we always try to make it worth your saturday morning. i don't want you to wish you had signed up for the spa or the tennis court or the golf links instead of coming here. if you feel that way at 11:30, just don't tell me about it, if you don't mind. we will review, as you know, some of the significant decisions from the supreme court's 2008-2009 term, the term that is almost complete. typically when we do this panel, the term is over, but they have kept us in suspense. i was at the table with the chief justice last night. i tried to fly in with an -- i tried to ply him with an extra glass of wine or two, saying, chief, you can tell us about monday's decision. it is not that far off. i have to tell you, his lips were sealed so we will have to guess about the richie case, the new haven firefighter's case. i ciewpts ask for better colleagues.
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we have jan crawford greenburg, a chicago law school graduate and the abc news legal correspondent and we have linda with "the new york times," now a scholar in residence at yale law school. we have john mcginnis. welcome back. he is a professor of law at northwestern university of school of law and knows the justice department from the inside, a much published scholar. we also have well-known to you a washington attorney who has argued, i think, 52 cases before the supreme supreme court that'a record but certainly puts him in the big league of practitioners before that body. i know my colleagues feel as i do in thanking the fourth circuit, chief justice williams, judge neirmeyer and the other judges of the circuit for their
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hospitality. i can't thank the staffpeople too much for having helped us with the arrangements, so they have made us comfortable and so that the panel doesn't assume your expectations it is not because the staff didn't do their best. we are now in the fourth year of the so-called roberts court. there is the convention of calling the supreme court by the name of the chief justice that is sometimes a little bit deceptive. we have every reason to believe that this will be in every sense of the word the roberts court but it is a yupg court yet. i want to provide historical context at the outset. it struck me that, and i checked this fact out, that this week it has been exactly 40 years since earl warren left the supreme court, his last day as a justice was exactly 40 years ago. we still remember the warren court.
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some of us remember it personally. others read about it. we remember it as being an uncommonly active court, judicial activism is the term that often comes to mind. john mar hall -- john marshall was heard to come main that the court really seemed to find a constitutional remedy for whatever the country's problems might seem to be, and he was not happy with what he saw as the court stepping in to solve those problems when the other branches of the government appeared not to be willing to act. others were more charitable. archie cox, the harvard famous scholar made the comment that the historians will record the warren court to have been essentially mainstream, that it was very much in touch with the keeping of the genius of american institutions, so you had quite a range of judgments about the warren court. there was discussion this
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morning, judge wilkinson asked the chief justice about important cases, which cases he would identify. when he stepped down from the supreme court, chief justice warren was asked if he would name the cases that he thought during the time of the warren court were the most historical. which ones had the most impact, and he picked three cases that he thought the warren caught ought -- the warren caught out to be remembered for. the top of the list was baker versus carr, one person, one vote decision, and the second was brown versus board of education, the desegregation case and the third was gid onversus wainwright, the case that if one could not afford a lawyer, one be appointed counsel in felony cases. this is not to be a lecture on the warren court, but if one tried to sum it up, one would have to say that the warren court was not especially concerned with technical doctrine. i mean, i think the current --
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if you could sum it up, the warren court wanted to do the right thing, and get it right and solve the problems and basically move on, and it's fundamental themes seem to have been fairness and equality. those were two ideas that i think helped explain the warren court opinions. now, that was 1969. that was 40 years ago. well, you remember how vocal critics of the warren court were. if you thought the court was active in 1969, think about the turf that is now been constitutionalized by the supreme court since the warren court, since 1969. a number of areas that were not on the court's docket then, which became constitutionalized, you could give some of these examples, abortion, rowe versus wade in 1973. sex discrimination under the 14th amendment.
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commercial speech is now under the umbrella of the first amendment. bussing has a remedy in school deseg grey dation cases, recently gay rights and quite a list of areas in which the court has steadily expanded its reach of what it takes to be a constitutional matter. in addition to the new areas there, there have either been revivals of or expansions of areas that were familiar before that point. one would have to point, for example, to the rehnquist court and federalism, breathing life back into the 10th and 11th amendments, finding limits for congress's commerce power. i used to tell my students they would never see that happen. i was proved wrong by the court in u.s. versus lopez. finding limits on congress's power under the 14th amendment at one time seemed unlikely, but the court has done that in cases
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like sydney bernie. the expansion of due process, which seemed to be attenuated in the 1960's has flared into life since that time. property protection. last year, the second amendment, d.c. versus heller. that's quite a lit list of areas in which the court has invigorated or rediscovered constitutional protections. coy add to that list, but i think you get the point. we remember the warren court for activism. we should remember just how much has happened in the courts since that time, and the story, in many ways of the supreme court from 1969 to the present time, this 40-year period, one of the themes of that era has been the struggle between republican presidents, reagan, and nixon before him, and then the two bushes after him. to try to he reshape the face of the supreme court in light of what they thought was wrong with
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the warren court. nixon put four justices on the court. rehnquist among them. a solid conservative, but then you had some that drifted to the left wing of the court like justice blackmon. reagan, the justice that year was very concerned about judicial nominations. interestingly enough, that was the time that john roberts and samuel alito be began to cut their teeth in washington affairs at that time. you had, of course, the first george bush, two nominations to the court, one of whom will step down this summer, and then of course bill clinton put two moderate liberals on the court, but the turnover during that time -- then there was that long period. you are remember, 11 years went by in which there were no vacancies on the court? quite historic. during that time, if you were to
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sort of sum up the rehnquist court, you would have to say that there were some extraordinary movements, i mentioned some of them, but there wasn' a solid phalanx of conservative votes. this was a period in which the center held justice o'connor's vote matter add great deal, so roe vs. wade was not overturned. affirmative action survived, and substantive due process that i mentioned. then came 2005, the extraordinary sequence of events which seemed a few weeks in time in which president bush nominated john roberts to fill o'connor's seat and then justice rehnquist died and roberts was moved over to the chief justice's chair and then samuel alito was nominated to bill o'connor's seat so that was the
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beginning of the roberts court. i thought i would give you a glimpse. some of these will be fanl yar, sots not, not so much about how the court has changed in doctrinal terms, but in many ways what a profoundly different court it is from the court it was in 1969 in terms of who is on the court and how they do their business. the first place, there has been a complete turnover. there are no warren court justices left. indeed, i believe there is no one on the court who behaves like a warren court justices. there are no brennans or thurgood marshalls on the court. secondly, i was impressed by chief justice's roberts answer to the question put to him a few minutes ago by the fen phenomenon that all nine of the present justices came to the supreme court from the federal courts of appeal.
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that is unprecedented. i think the chief justice was nuanced in suggesting that that actually masked the fact of the professional background of the nine were fairly disparate before they came to the appellate bench. if you go further back again, if you go back to 1969, there were people on the warren court who were major national political figures with extensive experience in politics before they ever came to the supreme court. earl warren as governor of california and vice presidential candidate, an hugo black had been one of the leading new deal senators and felix frankfurter as chief advisor to roosevelt, and arthur goldberg, secretary general of the afl-cio. i mean, these were people who were in the newspapers, in the press, well-known nationally before they came on the court. now, what difference it makes is the debate. do you want people on the court
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or not who have a political background? the third string that strikes me about the difference between then and now is the face of the court, the demographic face of the court. an obvious way, for example is we have women on the court. we didn't have them in 1969. we had blackmon and thurgood marshall on the court as black men and we will soon have the first hispanic justice on the court. there have been changes. it is interesting to recall that in 1969, it was exactly one roman catholic on the court, one jewish justice, and all the rest were protestants, mostly press buy tearian and e piss ka pailian and now by contrast, the majority are roman catholic, two jewish justices and once souter leaves the court, there will be exactly one protestant. again, i'm not suggesting that you can trace any cause and effect between the justices' religions and how they vote on cases, but it's an interesting
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way of commenting on how the court reflects the changing demography of the country itself. fourthly, the confirmation process. back in the '50's, 50 or so years ago, especially back in the new deal days before that, confirmations were fairly unexciting. it was not until 1953 that justices -- that nominees regularly appeared before the senate judiciary committee. now we know especially since the board hearings in 1987, it is a passion of political contests, guerilla theater between contending forces that. has politicized the process of nomination confirmation. i think today we know a great deal more about what goes on in a court than we did in 1969. i mean in my clerking days of the '60's that justices rarely
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talked to the press. they didn't go on cam rax they didn't make a lot of speeches. today there is increasing transparency. it looks like the closed chambers or the benign justices i think do more traveling and make more appearances in general, so the court is more, i think, available in effect to the general public. sixth, changes in the court he's internal process, something that one is not necessary hi aware of that was touched on again in the conversation this morning, that i think the court is a very different place in terms of how it does its business. the notion that justices will share memoranda written by a common pool did not exist until the early '70's, and now i think seven out of the nine justices take part in it. there was the emergence since the '60's of what justice powell once called nine little law firms, little bureaucracies
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within the chamber. i think there is also quite a difference of how the conferences are conducted by the chief justice. whether it is chief justice warren, or chief justice burger or chief justice roberts, they are different. the chief justice comment add moment ago about the difficulty of lawyers getting guidance from courts where there are splintered opinions, i think that multiple opinions are more common now than they were 40 years ago. number 7, a phenomena that i can't explain, some people call it the great shrinking docket. the supreme court, there was a time when they would decide after a brief and arguments something like 150 cases, this term here, fewer than 80 cases will have been assigned in that fashion, so that is certainly not something that everyone is
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sure about. those are just a few of the differences. now, i don't want to suggest that it is a complete and different tribunal, an organic supreme court. tradition is very important, but the court operates and thinks it does its work in ways that i think would not be recognized by the warren court. now, finally, to set it up for my panel that, say, we are blessed with some of the best and i think most articulate commentators in the country, as you will find out shortly, and i thought i would just put on the table several questions. i'm not saying that the panelists have to address these questions but they may arise in the conversation among us during the next part of the program. i think they are just ways of thinking about the term we have just finished, and to see whether this term helps us understand any better where we think the court is going. the first question is it now
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possible to talk about any conservative court? whatever that means, that's a loaded term and sort of a lay term, but is there evidence that in some way that people would understand that the court is a more conservative tribunal than it would have been a few years back? secondly, and this question is interesting in light of having the chief justice here earlier this morning, in what sense is it the roberts' court? what is the evidence for the influence of the chief justice, either on shaping the court's agenda, the selection of cases, or it actually shaping the opinions themselves, what the decisions actually say. the question he raised earlier about narrow opinions versus broad opinions. thirdly, one hears popular or press commentary distinguishing two pairs of justices on the court, scalia and thomas on the one hand
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